W v Police

[2025] NZHC 2279

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,

OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT

PURSUANT TO S 200 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CRI-2025-442-16

[2025] NZHC 2279

BETWEEN

W

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

8 July 2025 (via VMR)

Appearances:

S J Zindel for Appellant

A R Goodison for Respondent

Judgment:

12 August 2025

JUDGMENT OF McQUEEN J

[1]    The appellant, W, was sentenced on 16 June 2025 at the Nelson District Court,1 following the entry of guilty plea on the charge of possession of a knife without lawful excuse.2 At sentencing, W’s application for permanent name suppression was refused. Interim name suppression was continued by the District Court Judge pending determination of this appeal.

[2]    W now appeals against the decision to refuse name suppression on the basis he will suffer extreme hardship and his safety will be endangered if his name is published.

[3]The Crown opposes the appeal, submitting that the decision was correct.

1      Police v [W] [2025] NZDC 12911.

2      Crimes Act 1961, s 202A(4)(a): maximum penalty three years’ imprisonment.

W v NEW ZEALAND POLICE [2025] NZHC 2279 [12 August 2025]

[4]For the reasons that follow, the appeal is allowed.

The offending

[5]    On 16 July 2024, W was outside the Nelson Police station. He was walking along the side of the station yelling “fuck the Police” and “pigs” while kicking several windows along the side of the station. W continued to scream obscenities and challenge Police within the building while punching and kicking the side of the station.

[6]    W arrived at the secure Police carpark gate at the rear of the station where he was approached by Police in relation to his behaviour. He began yelling nonsensical comments in an agitated state. Upon seeing Police, W reached into a backpack he was carrying. Police apprehended him immediately and while struggling with him, W was heard saying “I’m getting my knife”. He was taken into custody where a search of his backpack revealed two kitchen knives: one approximately 30 centimetres long and the other approximately 15 centimetres long.

[7]    In explanation for his offending, W stated that he wanted to kill a “cop” or himself.

Decision under appeal

[8]    The District Court Judge set out the charges and summary of facts, before considering the Provision of Advice to Courts (PAC) report. Of note was that W was 27 years of age, single with no dependents. His explanation for the offending was that four weeks prior he stopped taking his medication for his mental health, and on the day in question he took a cocktail of pills and then had suicidal tendencies. Importantly, the PAC report said no further mental health treatment or rehabilitative treatment is sought and that he was not currently a risk of harm to himself.

[9]    In determining the appropriate sentence, the Judge noted that W fortunately did not present the knives to anybody, other than the verbal threat that he would. This to some extent lessened the seriousness of the charges. The Judge gave a warning to W that he cannot carry around weapons of any type without risking an outcome of imprisonment. Given W’s mental health background and limited work capacity, the

Judge imposed a sentence of 80 hours  of  community  work  and  supervision  for six months with the condition that he undertake such courses and programmes which are designed to prevent reoffending and to help with any mental health related issues.

[10]   The Judge then turned to the name suppression application. The Judge noted that the PAC report indicated W’s mental health issues were under control and no further rehabilitative support was recommended. In addition, the medical reports provided for W from a psychiatrist are dated 2021. The PAC report also says that he is not working, he does not socialise, he does not have many friends and he is not engaged in social media.

[11]   Given W’s circumstances and in the absence of any current evidence of mental health issues, the Judge considered there may be some hardship if his name was published but this did not reach the level of extreme hardship as required. The Judge declined the application for permanent name suppression. Given an indication that W would appeal this part of the decision, the Judge extended name suppression until determination of any such appeal.

Approach on appeal

[12]   An applicant has a right to appeal against a refusal to make a suppression order under s 283 of the Criminal Procedure Act 2011 (CPA).

[13]   The approach to suppression under s 200 of the CPA involves a two-stage inquiry.3 First,  the Court determines whether any of the threshold grounds  listed in  s 200(2) have been established. As the Supreme Court confirmed, it is clear from the wording of s 200(2) that an order for suppression under the CPA may not be made unless the Court is satisfied publication is likely to have one of the effects set out in that subsection.4 Applying this approach in relation to W requires considering whether either the extreme hardship threshold under s 200(2)(a) or the endangering safety threshold under s 200(2)(e) is met.

3      M v R [2024] NZSC 29, [2024] 1 NZLR 83 at [35]–[39] citing Robertson v Police [2015] NZCA 7.

4      At [35] citing Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441 at [174]–[175] per McGrath, William Young and Glazebrook JJ.

[14]   Second, the Court considers whether an order for name suppression should be made.5 The Court is to weigh the competing interests of the applicant and the public, considering such matters as whether the applicant has been convicted, the seriousness of the offending, the views of the victims, and the public interest in knowing the character of the offender. Counter-balancing factors must be weighed on a case-by- case basis against the principle of open justice and the underlying interests that principle serves.6

[15]   “Hardship” has been treated in caselaw as meaning “severe suffering or privation”.7 The addition of the qualifier “undue” in s 200(2)(c) indicates something more than simple hardship is required while the word “extreme” in s 200(2)(a) indicates something more again.8 Whether the threshold of extreme hardship is met is not to be considered in a vacuum.9 It is a contextual exercise involving some comparison between the hardship contended for and the usual consequences of publication.10

[16]   The approach on appeal is commonly treated as changing between the two stages.11 The appellate Court will approach the first stage of the inquiry as a general appeal, arriving at its own assessment of whether the statutory threshold has been met.12 If one of the grounds is met, the Court is able to go to the second stage. In the second stage of inquiry, the basis for intervention by an appellate Court is more limited and is an appeal on a discretionary matter.13 The Supreme Court described it in this way:14

5      M v R, above n 3, at [36] citing Robertson v Police at [41].

6 At [44].

7      See Tony Deverson and Graeme Kennedy (eds)  The  New  Zealand  Oxford  Dictionary  (Oxford University Press, Melbourne, 2005) at 491; M v R, above n 3, at [69] citing Robertson v Police at [48].

8      M v R, above n 3, at [69] citing Robertson v Police at [48].

9      At [70] citing Robertson v Police at [49].

10     At [70] citing Robertson v Police at [49].

11     Although whether this is correct remains an open question: M v R, above n 3, at [47]. See also

R v Police [2019] NZHC 2901.

12 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

13 In M v R the Supreme Court raised the question of whether the second stage was truly discretionary rather than evaluative, concluding that as matters had transpired, it was not necessary for it to consider the question, and that it would be better addressed in a case in which it truly arises: M v R, above n 3, at [46]–[47].

14 M v R, above n 3, at [46].

[46] The characterisation of a decision as discretionary, rather than evaluative, has implications for the appellate standard. A discretionary decision involves the exercise of discretion (choice) by the court, and the basis for intervention by an appellate court is more limited than that for an evaluative decision, in which a court must assess relevant factors and evaluate them. An appellate court can substitute its decision if it considers the evaluation is wrong. The parties in this case approached the decision as discretionary, meaning an appeal will only be allowed where the appellant is able to demonstrate either an error of law or principle; that the court failed to take into account a relevant matter or took into account an irrelevant matter; or that the decision is plainly wrong.15

The appeal

[17]   W advances the appeal on the basis that, in relation to the first stage, the Judge incorrectly found there would not be extreme hardship on the evidence available including suicidal ideation, and therefore there is a basis for the Court to interfere with the exercise of the discretion in the second stage.

First stage—extreme hardship and endangerment of safety

[18]   The first question is whether there is a real and appreciable risk that publication of W’s name will cause him extreme hardship and/or endanger his safety.

[19]   Mr Zindel, on behalf of W, says the hardship here relates to W’s risk of self- harm and suicide as a result of publication. He also appears to challenge the wording of the extreme hardship test by saying it is “overly stringent and off-putting” and that the test is not meant to be an impossible one to satisfy. In addition, it appears Mr Zindel is submitting that the Judge failed to adequately consider whether publication of his name will endanger the safety of W.

[20]   Ms Goodison, for the Crown, acknowledges that W has a recorded history of suicidal ideation, and this poses some risk given his past attempts and documented mental history. However, the most up to date information provided by W suggests that his suicide risk is being appropriately managed, including social support from his mother, who visits often, and his compliance with his medication. Ms Goodison

15     Applying May v May (1982) 1 NZFLR 165 (CA) at 170. See also  Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32] per Blanchard, Tipping and McGrath JJ.

submits that the Judge was correct to determine that the threshold of extreme hardship was not met.

[21]   I deal first with Mr Zindel’s point about whether the Judge was wrong to rely on extreme hardship rather than looking at endangering the safety of W from publication of his name. The Court of Appeal, in D (CA443/2015) v Police, noted that s 200(2)(e) is broad enough to encompass the risk of safety to a defendant.16 However, the Court qualified this by stating that nothing turned on that point in any case because suicide resulting from publication would clearly amount to extreme hardship and fall under s 200(2)(a).17 Here, it is clear the safety risk being argued is suicide and self- harm which would more appropriately fall under s 200(2)(a). Due to this, I do not consider there was an error in the District Court Judge not referring to this ground and I think it is more appropriate to consider the application under s 200(2)(a), in line with the approach in D (CA443/2015).

[22]I turn now to whether W can establish the extreme hardship threshold is met.

[23]   The Court of Appeal in D (CA443/2015) helpfully summarised the principles arising from the case law that dealt with self-harm and suicide risks:18

(a)The possibility of self-harm or suicide always gives a court cause for anxious consideration. Suicide would be a devastating and unacceptable consequence of publication and it cannot always be assumed that an at-risk person will behave rationally. But the court cannot adopt the stance that any risk is unacceptable. Under s 200 it must be satisfied that the relevant subs (2) risk is likely; that is, a real and appreciable possibility.

(b)Judges know that people may experience suicidal ideation when confronted with criminal proceedings, which are immensely stressful, but very seldom, if ever, act upon it. The proceeding is normally the principal cause of stress, although publication identifies the proceeding with the defendant and may cause great anxiety at particular points in time.

(c)For these reasons a defendant who relies on a risk of self-harm or suicide attributable to publication of his or her name must normally point to something more than the usual feelings of anxiety and despair that may attend proceedings. It is usual to offer evidence that the

16     D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614 at [8]; and LF(CA596/2022) v

R [2022] NZCA 656 at [36].

17 At [8]. The same approach was taken in LF (CA596/2022) v R, above n 16, at [36].

18     At [30] (footnotes omitted).

defendant is psychologically troubled for other reasons and is particularly susceptible to publicity. This may be coupled with evidence that the case will attract unusually extensive or critical media publicity.

…

(e)Anything that reinforces or mitigates other risk factors may affect the likelihood that publication will precipitate self-harm or suicide.

(f)The opinions of medical professionals deserve respect, but a court need not defer to them. It is unlikely to question an uncontradicted medical diagnosis of the defendant's condition, but such opinions may assume that any risk is too much risk or (as in this case) urge suppression without adequately addressing alternative ways in which the risk might be managed.

(g)There normally are ways of managing the risk. Where possible, medical reports prepared to assist the courts should recommend and evaluate those options. For example, a brief period of suppression may reconcile the defendant to the inevitability of publicity after the initial shock of arrest and first appearance. Support structures can be identified and deployed. Sensitive information of a personal nature may be suppressed.

(h)Suppression does not follow automatically from the court being satisfied that a relevant risk exists. The court must further consider the second issue: whether an order ought to be made in the exercise of discretion.

[24]   Mr Zindel relies on information about W’s mental health and suicide risk from the following sources:

(a)PAC report dated 6 March 2025;

(b)affirmation of W dated 24 February 2025;

(c)medical notes from Health New Zealand | Te Whatu Ora dated 30 and 31 July 2024;

(d)sentencing notes dated 12 August 2021;

(e)report of psychiatrist, Dr Tom Levien, dated 21 April 2021; and

(f)report of clinical psychologist and neuropsychologist, Dr Clare Brindley, dated 9 June 2021.

[25]   The information is dated, other than the pre-sentence report, W’s affirmation and the July 2024 medical notes. The sentencing notes and reports from 2021 indicate that W has struggled with his mental health and has engaged with health professionals since a young age. This earlier information was prepared in relation to W’s prior offending that occurred in almost the exact same manner as the current offending. There, the District Court Judge granted permanent name suppression of W’s name on the basis that disclosure of his name may lead to extreme hardship. The Judge considered that W had some unique personal circumstances. Mr Zindel seeks to rely on that information now to illustrate that there would be extreme hardship again to W if his name was published in relation to this offending.

[26]    I accept that the most up to date information provided by W suggests that his suicide risk is being managed, including through social support from his mother and his compliance with his medication. I also note that W states that his progress is going well given he has not had suicidal thoughts for six months. However, the fact remains that W’s mental health conditions and challenges are longstanding and ongoing. The older information does not provide much comfort that there is no risk of self-harm or suicide. The nature of the current offending is that W became upset by an event and then he took a cocktail of prescribed medication in an attempt to end his life. The trigger of his behaviour is unknown but his actions, namely the offending, can be seen as out of proportion to any trigger. The July 2024 medical notes record him experiencing a predominantly low mood, with chronic suicidal ideation. He was recorded then as likely to be at high risk of repeat attempts to harm himself.

[27]   W struggles with anxiety to the point where he often does not leave his residential address. I consider his difficulties with anxiety and mental health challenges make W particularly susceptible to publicity. As W states, he asks for name suppression owing to his particular make up as a person and his ongoing vulnerability.

[28]   I conclude that, despite there being nothing in W’s offending which means it is likely to attract unusually extensive or critical media publicity, W’s responses to events and his history of inconsistency with taking his medication (which can be seen as a cause of his offending) means there is a real and appreciable risk that publication of his name in relation to this offending may lead to him to self-harm again.

[29]   Overall, I consider that on the evidence it is likely that extreme hardship will be suffered by W if his name was to be published. I conclude this while also acknowledging there are additional ways to manage his mental health risk which are and will assist.

[30]   I therefore disagree with the Judge’s finding that the first stage of the test, being the threshold for extreme hardship, is not met.

Second stage—exercise of discretion

[31]   As the first stage is met, I move to consider the second stage of the test. The Judge did not consider this, given the conclusion that the threshold was not met.

[32]   The starting point in exercising discretion is the open justice principle, which anchors the analysis.19 In order for open justice to yield, the balance must “clearly favour” suppression.20 In a case, such as this, when there has been a conviction, different considerations apply as W no longer has the benefit of the presumption of innocence. Other factors that are likely to be relevant are:21

(a)the public interest in the nature of the offending and knowing W’s character and identity;

(b)the public’s right to freedom of expression;

(c)the likely impact publication will have on W’s prospects of rehabilitation;

(d)the interests of the victim; and

(e)the interests of any other affected person.

[33]   Mr Zindel submits that the Judge was plainly wrong not to suppress W’s name. Mr Zindel accepts that there may be an interest in W’s name, but it is not in the overall

19     M v R, above, n 3, at [44]. See also Parker v R [2020] NZCA 502, (2020) 29 CRNZ 536 at [42].

20     D (CA443/2015) v Police, above n 16, at [12].

21 At [12].

public interest that a troubled young man be permanently linked to this offending. W’s sensitivity and suicidal propensity should not be risked by publishing his name.

[34]   Ms Goodison submits that at this stage of the proceedings open justice is favoured as there are no fair trial rights to consider and W has been sentenced. In addition, there is a public interest in knowing the identity of W as there is a potential vulnerability to police officers (although Ms Goodison acknowledges that officers have an ability to look up W in their database to become aware of this risk). Overall, she submits the balance does not “clearly favour” suppression and therefore the appeal should be dismissed.

[35]   I consider the public’s interest in the nature of the offending and knowing W’s character and identity to be a neutral factor. The PAC report records that W’s risk of reoffending is towards police officers and authorities. In a community such as Nelson, I consider that the Police are likely aware of W, as are the health professionals who have dealt with him following his offending. There does not appear to be an obvious risk to the public at large, including because of the manner in which W lives.

[36]   I also consider that the prospects of W’s rehabilitation, understood in broad terms, will be negatively affected by publication of his name. W’s mental health conditions are longstanding and ongoing—although generally able to be managed with medication and other support. This is not a situation where W is facing a specific risk connected  to  stressors  or  triggers  that   have  gone  away,  as   was   the  case  in D (CA443/2015).22

[37]   In these circumstances and given W’s mental health challenges, I consider that this is a case that clearly favours suppression. The public’s freedom of expression and the principle of open justice are outweighed by the potential extreme hardship that W would face if his name was published in relation to this offending.

[38]   The Judge’s decision not to grant name suppression was therefore plainly wrong. An order granting W permanent name suppression should be made.

22     D (CA443/2015) v Police, above n 16, at [32(d)].

Result

[39]   I allow the appeal and make an order forbidding publication of W’s name, address, occupation or identifying particulars pursuant to s 200(1) of the Criminal Procedure Act 2011.

McQueen J

Solicitors:

Zindels Lawyers, Nelson for Appellant O’Donoghue Webber, Nelson for Respondent